Careless Talk and the Duty of Confidentiality

this post is by Sarah Phillimore, a barrister. 

Unbelievable having lunch at my usual cafe , 2 social workers discussin case at the next table laughing and joking , making me feel sick. This is private stuff and I’m not the only one who can hear there discussion.

Parent, posting on Facebook Group UK Social Services

Reading that comment from a parent made me feel very uneasy. It’s common for groups of lawyers and social workers who know each other well to take their discussions at court outside, for a coffee.

A frequent complaint made to me from parents is just how difficult it is for them to see lawyers and social workers laughing and chatting together; even if it isn’t a particular case they are discussing.

But its more than just insensitive to have these kind of relaxed ‘chats’ within ear and eyeshot of traumatised parents; it could also land you in very hot professional water if you carelessly breach confidentiality.

For example, it is one of the ‘Core Duties’ of the Barristers’ Code of Conduct that:

you must protect the confidentiality of each client’s affairs, except for such disclosures as are required by law or to which your client gives informed consent.


The duty of confidentiality is central to the administration of justice. Clients who put their confidence in their legal advisers must be able to do so in the knowledge that the information they give, or which is given on their behalf, will stay confidential. In normal circumstances, the information will be privileged and not disclosed to a court… Rule rC15.5 acknowledges that your duty of confidentiality is subject to an exception if disclosure is required by law.

The Professional Practice Committee (PCC) of the Bar Council considered the issue of what may or may not be disclosed by a barrister and advised that a barrister should tell the client as soon as possible about the broad ambit of his or her professional duty:

  • Counsel’s role is to represent the client and to present the client’s case to the best of his or her ability;
  • Counsel has a duty of “full and frank” disclosure in respect of relevant material that is disclosed by the client and which impacts upon the welfare of the child;
  • Counsel is not in a position to conduct a trial or proceedings whilst withholding or concealing relevant information from the parties and the Court;
  • The duty of confidentiality to the client owed by Counsel and contained in the Core Duties at CD6 may be overridden as permitted by law. In particular, any information which reveals a serious risk to the welfare of a child, or serious harm to a third party, may have to be disclosed even if Counsel’s instructions are discontinued.

The PCC consider that the duty on family lawyers to make ‘full and frank’ disclosure of issues that relate to the welfare of a child have given rise to a particular ‘culture’ in family proceedings that the client is advised to consent to disclosure of information that might be unfavourable to the client, because:

  •  that whilst the advocate has a duty to present the client’s case to the best of his or her ability, the advocate has a higher duty to the court to disclose relevant material to the court even if that disclosure is not in the interests of the client;
  • that full disclosure of relevant material will result in a fair and proper assessment of the child’s welfare and will assist the court in arriving at the best possible outcome for the child (usually their child);
  • that full and frank disclosure is more likely to result in parents’ and/or carers’ needs being properly identified, which in turn will have a positive impact upon the child if they are considered able to care for the child;
  • that if relevant information were to be withheld (such as a new relationship with an unsuitable partner), then almost invariably it would emerge during cross-examination or further investigation within the proceedings, and the client might then be heavily criticised and his or her case damaged because of his or her failure to be honest and open with the court at the earliest possible stage;
  • that in acting for a client counsel cannot mislead the court in any way.

The PCC make it clear that if a client doesn’t accept the advice that it is best to be up front about unfavourable information which relates to the welfare of a child,  the barrister will probably need to withdraw from the case, given the risks that this runs of misleading the court.

Privileged information

There are two types of ‘legal professional privilege’ which may operate to keep some information confidential, even taking into account the duty of ‘full and frank disclosure’.

  • Legal advice privilege covers communications between a client and his legal adviser and is available whether or not proceedings are in existence or contemplated;
  • Litigation privilege is wider, covering for example communications between a legal adviser and potential witnesses. These communications are privileged only where proceedings are in existence or contemplated.

The courts have decided that litigation privilege does not apply in care proceedings as they are meant to be non-adversarial. Thus all reports obtained from third parties should routinely be disclosed.

However information may still be privileged if the documents under scrutiny were prepared for the purposes of criminal proceedings (see S County Council v B [2000] 2 FLR 161 where the court held a parent could claim legal professional privilege in care proceedings in respect of communications with medical experts who had been instructed solely for criminal proceedings).

Communications between a client and his legal adviser remain privileged in family proceedings. This is considered a very important principle for the administration of justice –  a client must be free to consult his legal advisers without fear of his communications being revealed.

There is one exception to this – if the communications reveal a crime has been committed or is intended to further a criminal purpose.


A Barrister’s obligations to the court where there are concurrent care and criminal proceedings.

The court gave guidance in A Local Authority v PG [2014] EWHC 63 (Fam):

  • when a party to care proceedings is ordered to file and serve a response to threshold and/or to file and serve a narrative statement, that party must comply with that order and must do so by the date set out in the order;
  • the importance of parents or intervenors giving a frank, honest and full account of relevant events and matters cannot be overstated. It is a vital and central component of the family justice system;
  • a legal practitioner is entitled to advise a client of (i) the provisions and import of s.98 of the 1989 CA and (ii) the ability of the police and/or a co-accused to make application for disclosure into the criminal proceedings of statements, reports and documents filed in the care proceedings;
  • it is wholly inappropriate and potentially a contempt of court, however, for a legal practitioner to advise a client not to comply with an order made in care proceedings;
  • It is wholly inappropriate and potentially a contempt of court for a legal practitioner to advise a client not to give a full, accurate and comprehensive response to the findings of fact sought by a local authority in the threshold criteria document. This applies both where that advice is limited in time, eg until after a criminal defence statement has been filed and served and, worse still, the advice is given not to make such a response at all.

With regard to the risks parents might be running in giving statements in care proceedings that might go on to be used in criminal proceedings, see this post by suesspicious minds. 

There is also very useful discussion about the operation of section 98(2) and disclosure of documents to the police in the case of Re X and Y (Children: Disclosure of Judgment to Police) [2014].

Who should I trust? Advice from a family law barrister.

This is a guest post by family law barrister Lucy Read, who writes the Pink Tape blog.

Read a review of her book ‘Family Courts without a Lawyer’ here.


The importance of good advice

If social services are involved with your family or wanting to remove your children one thing you need is sound advice. There is lots of information out there on the internet, but not all advice is good advice, and general guidance does not always translate into a plan for what you should do in your own individual circumstances. Some things are universal but your family and your exact situation is unique.


The most important thing is to get information and advice before taking any rash actions. You don’t have to follow the advice you get, the decisions are up to you – but first listen to what people who know the system tell you.


If you are a parent and social services are talking about going to court or about removing your children you will be able to get free legal advice, and representation in court through legal aid – it doesn’t matter what your income is or how difficult your case is. If you are a family member such as a grandparent caring for a child you may also get free legal advice and representation – but this is generally not automatic and will depend on your finances and how strong your case is.


Most legal aid lawyers act for parents and children in these kinds of cases as their specialty. So they know a thing or two about what works and what doesn’t. If they advise you on a course of action think very carefully about what they are saying before disregarding it. If you don’t understand why they are advising you to do something – ask them. A good lawyer should explain why they are advising you to do or not to do something.


 Your lawyer acts for YOU and takes your instructions

Your lawyer is just that – your lawyer. They are independent of social services and will fight for you. But a part of their job is to advise you if something is hopeless or very unlikely to succeed, and to explain why pressing for a particular thing might make things worse. You need to know what your chances are before you go into court. So don’t be upset if they tell you something you don’t really want to hear – think seriously about what they say.


Your lawyer must act on your instructions though – so even if you decide not to accept their advice they will still argue your case for you. Do not worry that just because they have given you advice you don’t particularly like, or that you hope is overly pessimistic, that your lawyer is not on your side. They should be frank in private about your chances, but when in court or in negotiations will present your case and your arguments in the best light, putting forward the best points and challenging the evidence for you. They are used to having clients disagree with their advice, and will not be offended if you say you’d like to take a different course of action.


There are some restrictions on how far a lawyer can press a case for you – they can’t mislead the court by telling the judge something they know is not true, they can’t argue something that in their professional opinion is wrong in law or completely unarguable (they can still argue a weak case though), but it is ultimately up to them not you to decide how to run the case to give you the best chance of success – sometimes this means they won’t mention things that you think are important because they aren’t relevant or aren’t going to be as helpful as you think. But apart from those things your lawyer will run your case based on your instructions. If you think your lawyer is not doing this you can change your lawyer, but do think carefully about doing this because it can be difficult to get your legal aid transferred to a new lawyer’s firm and this can cause delay.


Most family lawyers are pretty good at what they do, but of course there are some that are not so good. It’s best to talk to your lawyer if you think they aren’t fighting your corner – they should be able to explain to you why they’ve adopted a particular approach in court, so it’s best to clear up any potential misunderstanding before rushing off to another lawyer.


Be wary of some sources of information

There is a lot of material out there on the internet about other people’s cases, some about cases which have gone wrong, or where social services have been criticized – some of it may be very frightening for you. You might feel like you should run away or that you shouldn’t trust social services. Don’t panic and take decisions based on what you read online – read it by all means, but ask your lawyer about it and how it applies to your case. And then, make your decisions.


Some information on the internet suggests that legal aid lawyers are “professional losers” who advise their clients not to oppose removal of their children, or who even agree to it without their clients instructions. It generally makes no difference to your lawyer financially whether you agree or don’t agree – there is no financial advantage in pressurising you to agree to settle something – a shorter hearing is usually paid less than a longer one. I’ve already explained that your representative must act on your instructions, even if they are foolish. It is your lawyers job to encourage you to make sensible decisions that are most likely to achieve your long term goal of keeping or getting back your children, but if you insist they must take the course of action you instruct. If they refuse to act on proper instructions your lawyer is committing professional misconduct and you can complain or change lawyer. I can’t say this never happens but in 11 years I have never been involved in a case where this has happened.


There is also some material on the internet and in the press that suggests or implies that there is a widespread corruption or conspiracy amongst social services or that social workers cook up allegations in order to snatch children from loving homes just so that they can be adopted, and that this is somehow for financial reward. I don’t think that is true, and the evidence for it is very weak : I think, based on my 11 years of experience of dealing with these cases and acting for parents, social services and children, that sometimes some social workers get things wrong, and sometimes some social workers make up lies or paint a misleading picture, and sometimes some social workers are too quick to suggest removal or adoption of children. Which is why you need a lawyer to guide you through the process. Ultimately you will have to make up your own mind about these sorts of things. Be sure to put yourself in a position where you have enough good quality information to assess those claims before jumping to conclusions or freaking out.


All family lawyers know that social services don’t always get things right, and they also know the best ways of demonstrating that to the court. But although you may not agree with everything social services say about you, usually there is some legitimate basis for their concern even if they have exaggerated or mixed things up or painted a misleading picture. You do need to address the points that they have got right rather than just deny everything.


Listen to what other people are worried about

Every case is different, but almost always your best chance of keeping your children or of getting them back is to listen to the concerns that are raised – really listen – think about whether the people raising those concerns might have a bit of a point, and think about what you can do to reassure people or to change things. It’s okay to say you’ve got things wrong in the past and that you haven’t been a perfect parent, but you do need to reassure people that things will be different in the future and show them why. It’s also okay to say that social services have got things wrong, but you’ll need to explain and show them where they’ve got it wrong. Burying your head in the sand, being angry or rude, or running away may make social services – and the court – more worried about how your children can be kept safe.


So. Listen to what social workers are saying even if you don’t agree with them. Get some legal advice and think about that advice before acting on it. Come to court and if you can, follow the advice of your lawyer about what you need to do at court and between court hearings, to give yourself the best possible chance. Base your actions on good information rather than on the advice of people who don’t know all the facts about your family or on your own emotions. And take responsibility for your own decisions.